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Arizona has permission to
implement Proposition 200's verification and reporting requirements for
immigrants seeking certain benefits, while litigation challenging the initiative
proceeds in the U.S. court of appeals. On Dec. 22, 2004, Judge David Bury of
the U.S. district court in Tucson denied the plaintiffs' request for a
preliminary injunction and lifted the temporary restraining order that
he had granted three weeks earlier (see "Court Temporarily Halts Arizona Initiative's
Reporting Requirements for Benefit Programs,"
Immigrants' Rights Update, Dec. 22,
2004, p. 7). The plaintiffs appealed and requested that the U.S. Court of
Appeals for the Ninth Circuit place the lower court's decision on hold while it
considers their case. The Ninth Circuit declined to grant the stay but issued a
briefing schedule for the appeal.
Proposition 200
requires state and local employees to verify the identity and immigration status
of applicants for certain services and to report "discovered" immigration law
violations to federal immigration authorities. It makes failure to file such a
report, or to direct an employee to file a report, a criminal offense. The
plaintiffs, including a nonprofit organization, government employees, and
Arizona residents (U.S. citizens and immigrants), challenged the initiative on
constitutional and federal statutory grounds and declared that they or the
communities that they serve would suffer serious harm if the measure were
implemented. The plaintiffs assert that the verification and reporting
requirements intrude on the federal government's exclusive power over
immigration and fail to provide adequate notice to government employees
regarding the terms and conditions that could subject them to criminal
punishment.
Judge Bury's earlier order declared that the plaintiffs had raised
"serious" constitutional questions and found that the balance of harm fell "sharply" in their favor. But his opinion denying the preliminary injunction
found that the initiative was "harmonious" with the federal welfare law; and it
departed from the reasoning of the federal court that struck California's
Proposition 187 as unconstitutional. Explaining that the Arizona initiative did
not alter immigrants' eligibility for benefits, the judge projected only a small
possibility of irreparable harm.
Judge Bury's decision was based in part on the fact that the measure had
been narrowly interpreted by the state. In an opinion issued Nov. 12, 2004,
Arizona's attorney general determined that the initiative applies solely to the
programs governed by Title 46 of the state code that do not fall within the
federal welfare law's exemptions. The judge accepted the "reasoned opinion" of
the state attorney general as consistent with the text and intent of the
initiative. Based on the attorney general's opinion, the state benefits agency
concluded that five programs, none of which are available to undocumented
immigrants, meet this definition: General Assistance, Sight Conservation,
"Neighbors Helping Neighbors," Utility Repair, Replacement and Deposit, and the
Supplemental Payment Program. The scope of the initiative, however, is the
subject of another lawsuit filed by the Federation for American Immigration
Reform (FAIR) and the "Yes on Proposition 200 Committee" (Yes on Proposition
200 v. Napolitano, No. CV2004-092999 (Maricopa County Sup. Ct.)). These
groups argue that Proposition 200 applies to a broader array of benefit
programs.
Proposition 200 also requires that individuals registering to vote provide
specific documents to establish that they are U.S. citizens and to prove their
identity when they appear at their polling place. The plaintiffs assert that
these requirements impose significant barriers on minority voters, in violation
of the 1965 Voting Rights Act. Because of its history of discriminatory voting
practices, Arizona is required under section 5 of the Voting Rights Act to seek
approval from the U.S. Dept. of Justice before implementing any changes in
voting procedures. On Jan. 24, 2005, the Justice Dept. granted clearance for
the proof-of-citizenship and identity document requirements, but reserved the
right to respond to additional information received during the remainder of the
60-day review period. The Justice Dept.'s response allows the litigation on the
voting provisions to proceed.
Friendly House, et al. v. Janet Napolitano et
al., CV 04-649 TUC DCB (filed Nov. 30,
2004); 9th Circuit Court of Appeals Docket No. 05-15098.
By
Tanya Broder, NILC staff attorney
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